Future shock: A worst-case courtroom scenario

Before we blister our hands high-fiving over the Wisconsin Supreme Court’s recent rejection of a rule that would have provided for anonymous juries in all cases, we should remember the proposed rule was so sweeping that it would have denied juror information even to the lawyers trying the case.

In today’s environment, however, a scaled-back version of the rule — one that provides information to the lawyers but denies it to the public and media — may not be so easily defeated. And from there, we’re only a short slide away from picking up the newspaper (or clicking the mouse) and finding a story like this one …

New Washington state law insures privacy of trial witnesses

SEATTLE (Dec. 2, 2008) — In a move that stunned the media and sent shock waves through the nation’s judicial system, Washington Gov. Bill Gates today signed legislation barring the public disclosure of the names of witnesses in all criminal and civil trials.

“Witnesses, like jurors, have privacy rights, and we have a duty to protect those rights,” said Gates, whose campaign pledge to restore personal privacy resonated with voters here. “Witnesses often are reluctant participants in our judicial system, and we should do everything in our power to protect them from media stakeouts, ambush interviews and stories that pry into their personal lives.”

The new Washington state law makes it a felony for any lawyer, party or court officer to disclose a witness’ name, address or other “identifying information.” The law also gives trial judges the power to close courtrooms if a witness reasonably believes that testifying in open court would allow for the disclosure of his or her identity. Under the law, witnesses also can ask to testify behind “witness privacy screens,” which now must be installed in all Washington courtrooms.

“We’re surprised and extremely disappointed,” said a representative of one Seattle-based media group. “This new law reverses the presumption of openness, which until recently had been the hallmark of our judicial system. I’m sure we’ll challenge the constitutionality of the legislation.”

While the Washington state law is the first of its kind, its supporters claim that it is nothing more than a logical and appropriate extension of the privacy protections now afforded jurors in 27 states.

“Many judges and now more than one-half of the states believe that jurors should not be forced to abandon their anonymity when they cross the courthouse threshold,” said a spokesman for the National Council for Personal Privacy. “Why should witnesses be asked to do any more? They have the same privacy rights and are probably more at risk for media and other surveillance than jurors, who do not have a personal involvement in the cases before them. These privacy rights are under constant attack and must be defended — look at how the media behaved in the Clinton case.”

Media and legal system observers point to the Arkansas perjury trial of former President Clinton as the point after which anonymous juries became the rule rather than the exception. During and after that trial, jurors complained to the presiding judge that reporters were staking out their homes, interviewing their friends and families and probing into their sexual histories. After the trial ended in a hung jury, some analysts speculated that the jurors were so intimidated by the media frenzy that they were unwilling to reach a verdict.

“Were there excesses in the reporting of the Clinton trial? Of course there were,” conceded a Georgetown journalism professor. “But there is absolutely no evidence that these excesses affected the jurors’ deliberations or their view of the case presented them. If they were so traumatized by this process, why did all of them hold press conferences after the mistrial was declared? Why did eight of them later do one-on-one interviews for national news shows? Why did five of them write books? Hell, one of them even got his own talk show on CNBC.

“Juror anonymity — and now witness anonymity — are significant steps toward a completely closed legal system,” the professor said. “What happens to the accountability of jurors and witnesses if they can hide behind screens or in closed courtrooms? Their decisions and their testimony, after all, dramatically affect the lives of the parties before them and, in some cases, the lives of countless other people. The unfortunate truth is that jurors, witnesses and the parties sometimes have to pay a small price for an open judicial system. The price that society pays for an anonymous system, however, is considerably higher.”

Anonymous juries became popular with judges in the late 1990s, especially after the celebrated murder trial of former football star O.J. Simpson. Unable to control how the media reported information in high-profile cases, judges instead decided to limit the information available to journalists. Media appeals of these secrecy orders rarely were effective, and the U.S. Supreme Court so far has refused to hear the issue.

The first state to seek complete juror anonymity was Wisconsin, which considered a blanket confidentiality rule in 1998. That proposed rule, which would have prevented even the lawyers in the case from learning jurors’ identities and work histories, was struck down by a unanimous state Supreme Court. Less than a year later, however, Wisconsin adopted a modified version of the rule, which required anonymous juries but allowed limited personal information about the potential jurors to be given to the lawyers involved.

Since that time, 26 other states have embraced juror confidentiality, and 14 others are considering anonymity proposals. Interestingly, neither California nor Arkansas has entertained jury secrecy legislation.

“Those of us who have lived through these celebrated trials know that they are aberrations,” said the president of the California Bar Association. “We know that the other 99.99 percent of cases are heard and decided without incident and without even a suggestion that jurors must be protected from public scrutiny.

“Our open judicial system has thrived for more than 225 years and is the envy of every other nation in the world,” she said. “For the life of me, I can’t understand why some people are so willing to so easily give that up. If a foreign dictator appeared on our doorstep and demanded that we institute a closed judicial system, we’d go to war over it. If jurors and judges in a handful of cases complain about media coverage, however, our first response is to make the system more secret.

“I simply don’t understand it. And it scares me to death.”

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.

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THE EXPERTS

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

About The First Amendment Center

We support the First Amendment and build understanding of its core freedoms through education, information and entertainment.

The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government.

Founded by John Seigenthaler, the First Amendment Center is an operating program of the Freedom Forum and is associated with the Newseum and the Diversity Institute. The center has offices in the John Seigenthaler Center at Vanderbilt University in Nashville, Tenn., and at the Newseum in Washington, D.C.

The center’s website, www.firstamendmentcenter.org, is one of the most authoritative sources of news, information and commentary in the nation on First Amendment issues. It features daily updates on news about First Amendment-related developments, as well as detailed reports about U.S. Supreme Court cases involving the First Amendment, and commentary, analysis and special reports on free expression, press freedom and religious-liberty issues. Support the work of the First Amendment Center.

1 For All

1 for All is a national nonpartisan program designed to build understanding and support for First Amendment freedoms. 1 for All provides teaching materials to the nation’s schools, supports educational events on America’s campuses and reminds the public that the First Amendment serves everyone, regardless of faith, race, gender or political leanings. It is truly one amendment for all. Visit 1 for All at http://1forall.us/

Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

First Amendment Moot Court Competition

This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

During the two-day competition in February, each team will participate in a minimum of four rounds, arguing a hypothetical based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

FIRST AMENDMENT CENTER ARCHIVES

State of the First Amendment survey reports

The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

The periodic surveys examine public attitudes toward freedom of speech, press, religion and the rights of assembly and petition; and sample public opinion on contemporary issues involving those freedoms.
See the reports.